OLC Memo: Authority of the President to Suspend Certain Provisions of the ABM Treaty

U.S. Department of Justice Seal U.S. Department of Justice Office of Legal Counsel Washington, D.C 20530 November 15, 2001 Office of the Deputy Assistant Attorney General MEMORANDUM FOR JOHN BELLINGER, III SENIOR ASSOCIATE COUNSEL TO THE PRESIDENT AND LEGAL ADVISER TO THE NATIONAL SECURITY COUNCIL FROM: John C.Yoo - Signature of John C. Yoo Deputy Assistant Attorney General Robert J. Delahunty - Signature of Robert J. Delahunty Special Counsel RE: Authority of the President to Suspend Certain Provisions of the ABM Treaty This is to provide you with our views on the question whether the President has the constitutional authority to suspend certain articles of the Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile Systems, May 26, 1972, U.S. - U.S.S.R., 23 U.S.T. 3435 (the "ABM Treaty") insofar as is necessary to allow the development and testing of missile defenses. You have asked us to consider two cases: first, suspension of the relevant articles by mutual consent of both the United States and the Russian Federation; second, unilateral suspension by the United States. We conclude that the President has the constitutional authority to suspend the articles in either case. We begin by setting out in Part I the relevant features of the ABM Treaty. In Part II, we review the President's constitutional authorities over treaties. In Part III, we address the President's specific powers of treaty termination and treaty suspension. Part TV illustrates these powers by reference to the practice of the United States. Part IV(A) addresses termination, and Part IV(B) suspension. Part V demonstrates that, whereas "amending" an Article II treaty requires Senate advice and consent, the partial suspension of a treaty does not. 1. The ABM Treaty The ABM Treaty, which entered into force on October 3, 1972, originated as a bilateral treaty between the United States and the former Soviet Union. In general, the ABM Treaty set limits on the number and location of anti-ballistic missile systems of the former Soviet Union and the United States and prevented the deployment of defenses against long-range strategic ballistic missiles. Each side was originally permitted to have two deployment areas (later, by protocol, reduced to one), so restricted and located that the areas could not provide a nationwide ABM defense, or become the basis for one. Of the two deployment areas originally permitted to each side, one was for a limited ABM system to protect that Nation's capital, and one was to protect an intercontinental ballistic missile system launch area. Quantitative and qualitative limits were set on the ABM systems that could be deployed, and the Parties further agreed to limit qualitative improvements of their ABM technology. In Article V, both Parties agreed to prohibit the development, testing, or deployment of sea-based, air-based, space-based or mobile land-based ABM systems and their components. Certain provisions of the ABM Treaty concerned the breach, amendment,or abrogation of the Treaty. Article X provided that "[e]ach Party undertakes not to assume any international obligations which would conflict with this Treaty." Article XIV(l) authorizes each Party to propose amendments to the Treaty, which if agreed upon "shall enter into force in accordance with the procedures governing the entry into force of this Treaty." Article XV(1) provides that the Treaty "shall be of unlimited duration." Article XV(2) grants each Party "the right to withdraw from this Treaty if it decides that extraordinary events related to the subject matter of this Treaty have jeopardized its supreme interests." The dissolution of the former Soviet Union during the autumn and winter of 1991 required the United States to re-evaluate its bilateral treaties with the Soviet Union, including the ABM Treaty. On the whole, the United States operated on the general principle that the treaty rights and obligations of the former Soviet Union had passed to "successor" States, unless the terms or the object and purpose of a treaty required a different result. See Memorandum for John M. Quinn, Counsel to the President, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Section 233(a) of S. 1745. at 1-2 (June 26, 1996) ("1996 Dellinger Memo"); see also Edwin D. Williamson and John E. Osborn, A U.S. Perspective on Treaty Succession and Related Issues in the Wake of the Breakup of the USSR and Yugoslavia, 33 Va. J. Int'l L. 261, 264-65 (1993). Nevertheless, in the area of arms control treaties it was decided to treat succession issues on a case-by-case basis. On September 26, 1997, the United States entered into a Memorandum of Understanding Relating to the Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Anti-Ballistic Missile Systems of May 26, 1972, September 26,1997, available at